Tuesday, June 26, 2018

SCOTUS DEALS TRUMP TRAVEL BAN VICTORY: An excellent lesson on the proper role of the judiciary.

The United States Supreme Court upheld President Trump’s temporary ban on travel to the United States of foreign nationals from several countries considered to be prone to terrorism who cannot be adequately vetted, creating a potential threat to the national security of the United States. The third iteration of the ban, issued in the form of a presidential proclamation, initially restricted travel from eight countries, six of which on the original list are predominantly Muslim. The countries on the initial list were Iran, Libya, Syria, Yemen, Somalia, Chad, Venezuela and North Korea. Chad was later removed from the list. Chief Justice John G. Roberts Jr., writing for a 5-4 majority, concluded that the president’s alleged anti-Muslim statements cited by the plaintiffs challenging the ban were irrelevant in determining the constitutionality of a presidential directive that was “neutral on its face.” Justice Roberts’ opinion provides an invaluable lesson as to the proper role that the judiciary is supposed to play in our constitutional system of checks and balances and separation of powers.

“The proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices,” Justice Roberts wrote. It addressed “a matter within the core of executive responsibility.”

Justice Roberts distinguished the infamous 1944 Supreme Court decision that endorsed the detention of Japanese-Americans during World War II, Korematsu v. United States, which he made clear is overruled. “The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of presidential authority,” he wrote. “But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.” Justice Sonia Sotomayor, in her stinging dissent, tried to make just such a comparison, declaring that in upholding the travel ban the Supreme Court “merely replaces one gravely wrong decision with another.” Quoting alleged anti-Muslim statements that Mr. Trump made as a candidate and, later, following the election, Justice Sotomayor said, “Let the gravity of those statements sink in.”

Justice Roberts was joined in the majority opinion by the other four conservative-leaning Justices, Anthony M. Kennedy, Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch. His decision properly deferred to the president’s unambiguous statutory authority under the Immigration and Nationality Act (INA) to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States.” 8 U. S. C. §1182(f).

Justice Roberts did something that the dissenters and lower court judges seeking to replace the president’s policy judgment with their own policy preferences failed to do. Justice Roberts actually interpreted, rather than attempt to rewrite or simply ignore, the operative statutory provision. “By its plain language, §1182(f) grants the President broad discretion to suspend the entry of aliens into the United States,” Justice Roberts wrote. “The President lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language. By its terms, §1182(f) exudes deference to the President in every clause.”

In discussing and readily dismissing the plaintiffs' argument that President Trump’s travel ban proclamation was issued for the unconstitutional purpose of excluding Muslims, Justice Roberts acknowledged the president’s alleged anti-Muslim comments made before and after the election. However, he concluded that such comments were irrelevant to determining the constitutionality of President Trump’s proclamation because the proclamation itself was neutral on its face. “The text says nothing about religion,” Justice Roberts wrote.

Justice Roberts noted that the judiciary generally defers to the authority of the political branches of the government over national security matters, including the admission of foreign nationals to the United States who themselves have no constitutional right to entry. He wrote that because there was “persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.” The proclamation was “expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.”

The plaintiffs, backed by Justice Sotomayor's dissent, observed that five of the seven nations currently included in the proclamation have Muslim-majority populations, which in their minds supports an inference of religious hostility. Not at all, Justice Roberts responded, “given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.”

Justice Roberts’ majority opinion drew an appropriate outer boundary as to the Court’s proper role in deciding whether President Trump’s travel ban proclamation should stand or not. In the case before the Court, Justice Roberts wrote, “the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy.”

This should have been a unanimous decision. Instead, the liberals on the Supreme Court, and the activist judges below who wrongly struck down the president's travel ban proclamation in the first place, think they should stand in the shoes of the president. They believe that their policy judgment as to what constitutes a legitimate threat to national security should prevail over the president’s executive decision made in his capacity as the nation’s commander-in-chief and acting under clear statutory authority. Such judicial overreach is not the way the courts are supposed to operate under our system of checks and balances and separation of powers. We need more judges in the federal courts at all levels who understand the fundamental architecture the Founding Fathers designed for our constitutional republic.